Mojo - March 2005

It looks like Donald Rumsfeld is busy trying to get more than half of the Guantanamo prisoners out of the naval base... and sent some place where they would have even less rights. Similar to "extraordinary rendition" procedures, detainees would be sent to prisons in other countries, often in places where torture is common. Pentagon officials claim that recent court rulings -- especially those challenging administration claims that Guantanamo detainees have no rights -- have been a motivating factor here.

The transfer may prove a fairly difficult task given the fact that the CIA and State Department aren't really keen on taking the fallout for sending more prisoners to places where they will be abused. Moreover, it seems that some of the destination countries "have largely ignored American requests for transfers."

Even as all this is going on, the Pentagon is still pushing for its $41 million financing request from Congress to build a more "modern prison" in Guantanamo. The new digs are for the rest of the prisoners who Defense Department officials claim "are expected to remain there for the foreseeable future." These roughly 200 semi-permanent prisoners are, apparently "too dangerous to be turned over to other nations or would probably face mistreatment if returned to those nations." Since when is the Pentagon worried about their "too dangerous" detainees being tortured?

Prompted by an international tribunal's decision last year ordering new hearings for 51 Mexicans on death rows in the United States, the State Department said yesterday that the United States had withdrawn from the protocol that gave the tribunal jurisdiction to hear such disputes.

It's a new—and legally questionable—manifestation of the administration's desire to have no infringements upon its power. It all started with a memo from President Bush to Attorney General Alberto Gonzales, directing state courts to review cases of non-citizen prisoners who claim that they didn't get access to their home-country diplomats, an act generally mandated by the International Court of Justice.

That memo seemed odd given the administration's general distaste for international institutions. Then the pieces starting coming together. Yesterday, Secretary of State Condoleezza Rice sent a memo to UN Secretary General Kofi Annan declaring that the U.S. would wtihdraw from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. A brief translation: "The protocol requires signatories to let the International Court of Justice (ICJ) make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad." This legal safeguard has often been used to fight the sentences of foreigners who are facing the death penalty in the U.S.

Here is where things start getting good. It turns out that the U.S. Supreme Court is scheduled to hear the case of Jose Ernesto Medellin, a Mexican currently on death row in Texas, on March 28. But thanks to the earlier memo to Gonzales directing a "review and reconsideration" in state courts, the Supreme Court case now appears moot at this point. Moreover, Medellin's case would fall exactly under the ICJ's purview, but given our convenient withdrawal from the protocol, the ICJ no longer has jurisdiction in these cases. So, Bush declared that Texas state courts grant a new trial to Medellin—and some 51 Mexican nationals currently in a similar situation—in the name of the principles of the ICJ, but then effectively took the enforcement power out of the Supreme Court and ICJ's hands.

Is there any hope? Well, the Supreme Court may not have a go at this case this term, but it will probably see it again. That's because Texas' state judges are pissed, and questioning the legality of the President to make demands on their state courts. (For the legal ins and outs of the President's claim vs. Texas state court's claim, check out SCOTUSblog.) If Texas state courts refuse to acquiesce to the President's demands, the case will probably head right back up to the Supreme Court.

Also, it has yet to be established whether the President can immediately and single-handedly withdraw from the Optional Protocol. From a preliminary scanning of the Vienna Convention on the Law of Treaties, Miami law professor Michael Froomkin finds an article that states "a party shall give no less than twelve months' notice of its intention to denounce or withdraw from a treaty..." (Read more at his personal blog discourse.net.)

It looks like this administration is not only tired of international courts impeding on its power, but our own Supreme Court, not to mention Congress. Those pesky checks and balances...

Ah, it appears my earlier skepticism on reports that the White House was adopting a more flexible Lebanon policy appears to be well-warranted. Condoleeza Rice is now saying that the U.S. has no plans to make nice with Hezbollah after all. What's interesting, though, is that European leaders are now seeing fit to take a harder line against the Islamic militant group, though they're not ready to call it a "terrorist group" just yet.

I was going to just leave this post at that, with maybe a link to this excellent Carnegie briefing on Lebanon (for those who need a concise refresher), but the EU about-face here is just asking for a bit of freewheeling speculation. So off we go. It's entirely possible that Europe is trying to convince the Bush administration that it too can take a tough stance on various militant groups or recalcitrant regimes or what have you. In the case of Hezbollah, I don't think a hard line is the way to go. On the other hand, though, one of the things that seems to be preventing the U.S. from getting more heavily involved in the ongoing EU negotiations on Iran's nuclear weapons program—involvement that would really be quite helpful—is the fact that the Bush administration doesn't think Europe will "get tough" on Iran if talks fall apart.

So we may be seeing some interesting convergence here. The White House earlier sidled over to the French multilateralist view on Syrian withdrawal, and the EU gives a little on U.S. views of Hezbollah. Hopefully the end result is sensible policy all around, but the process is important here too. Let's hope it's not illusory.

The ACLU has recently obtained some 800 pages of documents from the Defense Department via a Freedom of Information Act (FOIA) request. Among the documents are newly-released annexes to the Pentagon's Fay-Jones inquiry into the abuses at Abu Ghraib. The new documents reveal extensive testimony of widespread and systematic abuse on a scale not fully portrayed by the original report. There is no way the administration can use the "few bad apples" line any longer.

The ACLU also obtained documentation of a formal agreement between the Army and the CIA to hide "ghost detainees." These were prisoners who were kept "off the records" so that the CIA could interrogate them without any oversight. Other documents verified that these "ghost detainees" were hidden from Red Cross monitoring.

Also revealed was evidence of a phenomenon that Brig. Gen. Janis Karpinski, the head of a Military Police unit at Abu Ghraib, once called "releaseaphobia"—or fear that releasing an innocent detainee who was abused would not please higher-ups and may lead to the detainee joining insurgent forces. According to one contractor's testimony,

It became obvious to me that the majority of our detainees were detained as a result of being in the wrong place at the wrong time, and were swept up by Coalition Forces as peripheral bystanders during raids. It appeared that there was an extreme reluctance to release these low value inmates because of the fear that one of them might return to attack Coalition Forces.

The administration is trying to dampen the shock value of the newly-uncovered abuses by releasing these documents bit by bit. The hope here is that the media, seeing the Fay-Jones report as last year's news, won't see a new story in old documents. But it would be unfortunate, indeed dangerous, if the public assumes that they have already seen all this. As new documents come out, it becomes obvious that there is much more to the story that we have yet to see.

The long-delayed Church report, which promised to investigate U.S. interrogation procedures used in Iraq, Cuba, and Afghanistan, has finally been completed. While not yet available to the public, the New York Times got a chance to peek at the executive summary. Not surprisingly, the report concluded that "Pentagon officials and senior commanders were not directly responsible for the detainee abuses." There is certainly a strong case to be made to the contrary, as evidenced by the recent lawsuit broughty by the ACLU and Human Rights First against Donald Rumsfeld for his role in various interrogation abuses. But that aside, and judging from the Times' summary, many of the Church report's findings themselves might contradict the conclusion that higher-ups are free from direct responsibility.

The Church report notes that in January of this year, a new set of interrogation procedures was approved by the military. (They have yet to be publicly released.) These new procedures, it seems, clear up any existing ambiguities that may have led to abuses. Yet Church still feels the need to paper over the motivation behind this clarification by stating that those ambiguities, "although they would not permit abuse, could obscure commanders' oversight of techniques being employed." It seems pretty hard to imagine that an "ambiguity" would keep a commander from seeing that sodomizing and beating detainees counts as torture. And it is an even further leap to suggest that the widespread nature of these abuses does not implicate Pentagon officials' clear sanctioning of these methods.

The closest the Church report comes to laying blame at the top is noting that high-level Pentagon officials did not provide "specific guidance on interrogation techniques…to the commanders responsible for Afghanistan and Iraq." Of course, the report merely calls it a "missed opportunity," a rather disgraceful way to describe the Bush administration's refusal to take seriously the various military personnel who came forward about inhumane interrogations, or its refusal to pay attention to the Red Cross reports that directly described detainee abuse.

There's still hope that the report will face scrutiny, and that future, less partisan, inquiries be launched. Today, the Senate Armed Services Committee is conducting a hearing on the report, and Sen. Carl Levin (D-MI) is pushing for an independent review. Noting the ineffectual nature of the inquiries thus far, Levin states, "In the end, I can only conclude that the Defense Department is not able to assess accountability at senior levels, particularly when investigators are in the chain of command of the officials whose policies and actions they are investigating." Indeed.

Yeah, it's the mother of all flip-flops, but serious kudos to the Bush administration for employing a somewhat defter touch in Lebanon by extending an olive branch to Hezbollah:

After years of campaigning against Hezbollah, the radical Shiite Muslim party in Lebanon, as a terrorist pariah, the Bush administration is grudgingly going along with efforts by France and the United Nations to steer the party into the Lebanese political mainstream, administration officials say.

It's possible, of course, that those unnamed "administration officials" are nothing more than a few sane voices in the wilderness, futilely trying to convince gullible New York Times reporters that cooler heads are prevailing when, in fact, the Bush administration is still harboring serious antipathy for Hezbollah. That's possible. But bringing Hezbollah into the political fold remains the vastly more sensible move. And, after all, it's not like we've never invited militia-strapped Shi'ites to take part in fledgling democracies before. The primary argument for continued opposition to Hezbollah, however, is that Israel certainly wants to see the militias disarmed. Without wading too much into it, it's far from clear that the Bush administration will buck those demands, though further kudos if they decide to put sensible policy ahead of relatively narrow Israeli interests.

At any rate, from where I sit Hezbollah looks to be the key to events over the next few weeks. After the group's "pro-Syria" rallies yesterday, Syria felt confident enough today to install the old prime minister back in his spot, and as the Timesreported today, "Syria seems now to have regained the initiative." Of course, the Syrian occupation still faces massive opposition—from Lebanon's Christians, Druze, and Sunnis—and if that opposition can extend a hand to Hezbollah, it will be difficult for Syria to keep dipping its fingers in Lebanese affairs. As noted yesterday, it's entirely possible that Hezbollah hasn't sided so vigorously with the opposition mainly because it thinks it will be targeted by an U.S.-dominated "liberation" of Lebanon. But Hezbollah doesn't want a civil war—it's not clear that they'd win or come out better for it—and would no doubt prefer to strike a deal with other Lebanese if a deal can be made. If all that is in fact the case, the White House's newfound terrorist-appeasement policies could end up doing a lot of good.

Back in April 2004, the ACLU brought a case against the United States government in which they argued that the FBI had no right to demand sensitive customer information from an unnamed internet company. In the case, the FBI had claimed that the Patriot Act expressly gave the agency this power, and moreover, that it could prevent the internet company from even informing its customers of the info handover. Eventually, a New York judge, Victor Marrero, declared this portion of the Patriot Act unconstitutional, and ruled against the FBI.

As mentioned, this case took place way back in April, and Judge Marrero's ruling made the headlines, but details of the case itself were placed under a gag order by the U.S. government. It was only yesterday that the ACLU released documents from the case. Apparently, the government wanted some of the documents kept from the public solely because they contained the words "sensitive," "national security," or "FBI". Even an ACLU letter to Judge Marrero objecting to the gag order was kept from the public. Looking through the documents, it's hard to find anything that appears to be "sensitive information," besides perhaps the ACLU's argument that the FBI was doing something unconstitutional.

In a related vein, the administration has also been attempting to use the "state secrets privilege" to avoid even having to defend its actions in court. It is a growing body of evidence that reveals a systematic governmental effort to obscure basic information regarding the constitutional nature of the government’s actions from the public. This is all being done in the name of national security. The legitimacy behind this censorship should certainly be called into question.